The Supreme Court will decide whether to strike off a practitioner who strung his client along for two years with lies he was attending hearings and by filing material that contained false representations.
Judge Henry Jackson of the Western Australian State Administrative Tribunal (WASAT) was satisfied Philip John Mark Kelly was unfit to practise and should be referred to the Supreme Court with a recommendation that his name must be removed from the roll.
In primary reasons published last November, Kelly was found guilty of nine counts of professional misconduct and one count of unsatisfactory professional conduct for “undue delay, incompetence, failures of communication, including discourtesy and dishonesty”.
Along with senior member Dr Michelle Evans-Bonner and member Ross Povey, Judge Jackson found the extent of Kelly’s misconduct reinforced the need “to bring home to him the seriousness of his conduct, and the need to deter him from future breaches”.
“There is also a need to bring home to other practitioners, who might otherwise do likewise that the conduct the subject of our findings is unacceptable and that very serious sanctions will ordinary follow.
“That is particularly the case as to findings of dishonesty. Dishonest practitioners pose a significant danger to the public’s confidence in the legal system as a whole,” the WASAT bench determined.
Between April 2017 and April 2019, Kelly engaged in lengthy and repeated misconduct, starting with a “very considerable and unjustified delay” in filing appeal notices for a client who had retained him to assist with two motor vehicle convictions.
The client said he approached Kelly in April 2017 and “urgently” informed him of the need to file the first of the appeal notices within four days, but this was not done until the following February.
Kelly also prepared – or caused to be sworn and filed – affidavits that contained false statements about the delay. He also made two further false representations to the court.
A failure to attend the hearing of the appeals when first listed and a failure to communicate with the court about the failure and the rescheduling of the hearing was described as “gross misconduct”.
Kelly then deliberately failed to inform the client the appeals had been listed, knowingly and falsely represented a hearing of the appeals had taken place, and claimed he had attended them.
Judge Jackson also found Kelly appeared to be “unaware of basic legal requirements” and suffered from a “lack of basic legal knowledge”.
“A member of the public is entitled to expect that a lawyer holding themselves out as practising in this area of law would be aware that they should state the grounds of appeal and adduce evidence in support,” Judge Jackson, Evans-Bonner, and Povey said.
“That is, after all, the point of engaging a lawyer as opposed to continuing as a self-represented litigant.”
In addition to the strike-off recommendation, Kelly was ordered to pay the Legal Services and Complaints Committee’s costs in the sum of $46,672.26.
The case: Legal Services and Complaints Committee and Kelly [2024] WASAT 125.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
